Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Labour Inspection Convention, 1947 (No. 81) - New Zealand (Ratification: 1959)

Other comments on C081

Observation

Direct Request

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The Committee notes the observations of the New Zealand Council of Trade Unions (NZCTU) and of Business New Zealand, incorporated in the Government’s report.

Articles 2 and 23 of the Convention. Scope of application of labour inspection. The Committee notes the observations made by the NZCTU concerning a case in 2015, which according to the trade union revealed that Chinese workers employed by companies from the same country are exempt from labour inspection, as permitted under the terms of the China–New Zealand free trade agreement. The Committee requests the Government to provide its comments in this respect.

Article 3(1) and (2). Additional duties entrusted to labour inspectors. The Committee notes the reiterated indications of the Government, in response to the Committee’s previous request, that the focus of the work of labour inspectors in relation to migrant workers is combatting exploitation and punishing exploitative employers – and not controlling the immigration status of workers. However, the Committee also notes from the Government’s report that labour inspectors and immigration staff routinely carry out site visits together and share information involving, amongst other things, the documentation of migrant workers.

The Committee notes the Government’s indication in its report that undocumented migrant workers who make a claim of exploitation can seek a visa. In this respect, the Committee notes that the NZCTU indicates that there is significant uncertainty for migrant workers with regard to their future visa status where they lose their employment as a result of making a complaint. The NZCTU argues that this is due to the discretion of immigration officials to make a decision to: (i) issue a temporary visa for migrant workers to act as witnesses for the prosecution, and particularly to: (ii) disregard the previous irregularities in the documentation of migrant workers in considering a request for a renewed visa. In this respect, the Committee recalls that in its 2017 General Survey on certain occupational safety and health instruments, it indicated that workers in a vulnerable situation may not be willing to cooperate with the labour inspection services if they fear negative consequences as a result of inspection activities, such as the loss of their job or expulsion from the country (paragraph 452). The Committee requests the Government to take measures to ensure that the functions assigned to labour inspectors do not interfere with the main objective of labour inspectors to ensure the protection of workers in accordance with labour inspectors’ primary duties, as provided for in Article 3(2) of the Convention. Because the Government has not provided a response in this respect, the Committee once again requests the Government to provide information on the manner in which the labour inspectorate discharges its primary duties in ensuring the enforcement of employers’ obligations with regard to the statutory rights of these workers in an irregular situation for the period of their effective employment relationship. In this regard, it requests the Government to provide information on the number of cases in which workers found to be in an irregular situation have been granted their due rights, such as the payment of outstanding wages or social security benefits and on the number of cases where workers in an irregular situation making a complaint of exploitation have been issued with a temporary visa to remain as a witness for the prosecution.

Article 3(1)(b). Educational activities conducted by the labour inspectorate. The Committee notes the detailed response of the Government, in reply to the Committee’s previous request, concerning the numerous activities of labour inspectors to supply technical information, advice and education to employers and workers, including migrant workers. In this respect, the Committee notes that the NZCTU indicates, among other things, that more resources are needed to cover the full range of industries employing migrant workers in the first languages of workers, and that a much more active programme of outreach is needed to make these resources available to migrant workers. The Committee also notes the comments from Business New Zealand that more needs to be done to provide education and advice to employers, including making information resources more easily accessible, so as to enable them to know their obligations and comply with them. The Committee requests the Government to continue to provide information on the provision by labour inspectors of technical information and advice, as regards employers and workers, including migrant workers.

Article 4. Coordination and cooperation among the different structures of labour inspection. The Committee previously noted that WorkSafe New Zealand is responsible for labour inspection in the area of occupational safety and health (OSH) and the labour inspectorate at the Ministry of Business, Innovation and Employment (MBIE) for labour inspection in the area of employment matters. The Committee notes the Government’s indication, in response to its previous request, concerning coordination and collaboration between these two bodies including collaboration at the strategic and inspectorate level, such as joint inspections, and a close relationship through the frequent co-location in the same regional offices. In this regard, the Committee notes the reiterated observations made by the NZCTU that, given the travel and administrative cost related to the separate monitoring of employment and health and safety standards in workplaces, increased cooperation could be useful. The Committee requests the Government to provide more detailed information on the collaboration and cooperation between WorkSafe New Zealand and the labour inspectorate at the MBIE, including on the number of joint inspections undertaken in the area of OSH and employment matters.

Article 5(b). Collaboration between the labour inspection and employers’ and workers’ organizations. The Committee notes the Government’s response, in reply to the Committee’s previous request, on the arrangements made for collaboration between the labour inspection services and employers’ and workers’ organizations. The Government indicates that collaboration is undertaken through the decision concerning the appointments made to the Board of WorkSafe, and regular meetings with the NZCTU, Business New Zealand, the Business Leaders’ Health and Safety Forum, and other relevant organizations. The Committee takes note of this information.

Article 10. Number of labour inspectors. The Committee notes the Government’s indication, in response to its previous request, that there are currently 177 WorkSafe Health and Safety Inspectors (an increase from 119 in 2013), and 60 labour inspectors in employment matters (an increase from 41 in 2014), and that these figures do not include managers and specialist inspectors. It also notes the Government’s indication that increased funding enabled the opening of a new labour inspectorate in South Auckland in 2015. The Committee notes the reiterated observations of the NZCTU that the number of labour inspectors remains insufficient to effectively discharge their mandate, and that the trade union calls for an increase in the number of labour inspections in employment matters to match the number of WorkSafe Health and Safety Inspectors. The NZCTU indicates that the under-resourcing of the labour inspectorate has led to some categories of breaches no longer being investigated, with the focus being on the investigation of serious complaints. The Government indicates that while not every complaint is investigated, compliance is also intended to be achieved through other means, particularly education and the existing forums for mediation and adjudication. Welcoming the increase in the number of labour inspectors, the Committee requests the Government to continue to provide information in this regard, including on the recruitment of additional inspectors in employment matters, in order to ensure that there is a sufficient number to secure the effective discharge of the duties of the inspectorate.

Articles 17 and 18. Effective enforcement of legal provisions. The Committee welcomes the information provided by the Government, in response to its previous request, regarding the strengthening of the powers of labour inspectors and the increased penalties for labour law violations, through the adoption of amendments to the Employment Relations Act, contained in the Employment Standards Legislation Act 2016, as well as the Health and Safety Work Act (HSWA) 2015. In this regard, the Committee notes the observations made by Business New Zealand under this Convention, and the observations made by the NZCTU under the Occupational Safety and Health Convention, 1981 (No. 155). The NZCTU indicates that while the fines have been significantly increased, it is to be expected that the courts will usually substantially reduce the maximum fine and reparations payable by an offender. Business New Zealand stares that while the maximum penalties will rarely be imposed, it is questionable whether this increase is effective in view of the fact that many “individuals” will have no possibility to pay even a lesser fine, and that few accidents are actually the consequence of deliberate actions, which is why the deterrent effect is quite likely not to operate in the way intended. In response, the Government explains that the highest level of fines is for a business, and not for individuals and that the maximum levels are intended to provide guidance to the courts about the fine level to set as appropriate for the offence and according to the circumstances of the case. The Committee requests the Government to provide statistical information on the penalties imposed and collected following the revised penalties in the Employment Relations Act and HSWA 2015, including information on the average amount of penalties imposed and collected.

Articles 20 and 21. Publication and content of the annual report on the work of the labour inspectorate. The Committee notes the 2016–17 annual report of WorkSafe communicated by the Government, which contains information on the activities of WorkSafe, including on the number of fatal occupational accidents and approximate number of cases of fatal occupational disease. However, the Committee notes that this report does not contain information on the staff of the labour inspection system, the workplaces liable to inspection and the number of workers employed therein, the number of labour inspection visits undertaken, the number of violations detected and penalties imposed. In this regard, the Committee also notes that no annual report of the labour inspectorate at the MBIE was received. Nonetheless, the Committee notes the Government’s indication that the MBIE is currently considering ways to improve information sharing on labour inspection data, and that information on the number of labour inspectors is available on the website of the MBIE and the WorkSafe, whereas information on the number of workplaces and the number of workers employed therein is regularly updated by Statistics New Zealand. The Committee also notes the Government’s indication that WorkSafe is continuing to improve the data provided on its website, and currently provides summarized information on the prosecutions undertaken. In view of the information available, the Committee requests the Government to take the necessary measures to ensure that in the future, the annual reports of the authorities responsible for labour inspection are published, and regularly communicated to the ILO, containing complete information on all the subjects listed in Article 21(a)–(g).